Exhibit
10.9


 


SUBTENANT
GUARANTY AGREEMENT


 


(LEASE
NO. 2)


 


THIS
SUBTENANT GUARANTY AGREEMENT (this “Agreement”) is made and given as of June 30,
2008 by each of the parties listed on the signature page hereof as a
Subtenant Guarantor (each a “Subtenant Guarantor” and collectively, the “Subtenant
Guarantors”), for the benefit of CCC
FINANCING I TRUST, a Maryland business trust, CCC OF KENTUCKY TRUST, a Maryland business
trust, CCC OHIO HEALTHCARE TRUST,
a Maryland business trust, CCC PUEBLO NORTE
TRUST, a Maryland business trust, CCC
INVESTMENTS I, L.L.C., a Delaware limited liability company, CCCP SENIOR LIVING LLC, a Delaware limited
liability company, CCDE SENIOR LIVING LLC,
a Delaware limited liability company, CCFL
SENIOR LIVING LLC, a Delaware limited liability company, CCOP SENIOR LIVING LLC, a Delaware limited
liability company, CCSL SENIOR LIVING LLC,
a Delaware limited liability company, LTJ
SENIOR COMMUNITIES LLC, a Delaware limited liability company, CCC FINANCING LIMITED, L.P., a Delaware
limited partnership, CCC RETIREMENT
COMMUNITIES II, L.P., a Delaware partnership, HRES1 PROPERTIES TRUST, a Maryland real
estate investment trust, LEISURE PARK VENTURE
LIMITED PARTNERSHIP, a Delaware limited partnership, and PANTHER HOLDINGS LEVEL I, L.P., a Delaware
limited partnership (together with their successors and assigns, collectively,
the “Landlord”).


 


W  I  T  N  E
S  S  E  T  H :


 


WHEREAS, certain entities comprising Landlord
and FS Tenant Holding Company Trust, a Maryland business trust, FS Tenant Pool
III Trust, a Maryland business trust, FS Commonwealth LLC, a Maryland limited
liability company and FS Patriot LLC, a Maryland limited liability company, (collectively, “Tenant”) are
parties to that certain Amended and Restated Master Lease Agreement (Lease No. 2),
dated as of the date hereof (the “Amended Lease No. 2”); and


 


WHEREAS, FS Tenant
Holding Company Trust subleases a portion of the Premises leased to Tenant by
Landlord to each of
the parties listed on the signature page hereof as a Subtenant Guarantor (each
a “Subtenant Guarantor” and collectively, the “Subtenant Guarantors”);
and


 


WHEREAS, it is a condition precedent to the
Landlord’s entering into the Amended Lease No. 2 that the Subtenant
Guarantors guarantee all of the payment and performance 


 

















 


obligations of Tenant with respect to the Amended
Lease No. 2; and


 


WHEREAS, the transactions contemplated by the
Amended Lease No. 2 are of direct material benefit to the Subtenant
Guarantors;


 


NOW,
THEREFORE, in
consideration of the foregoing and for other good and valuable consideration,
the mutual receipt and legal sufficiency of which are hereby acknowledged, the
Subtenant Guarantors hereby agree as follows:


 


1.             Certain Terms. 
Capitalized terms used and not otherwise defined in this Agreement shall
have the meanings ascribed to such terms in the Amended Lease No. 2.  The Amended Lease No. 2 and the
Incidental Documents are herein collectively referred to as the “Transaction
Documents.”


 


2.             Guaranteed Obligations. 
For purposes of this Agreement, the term “Guaranteed Obligations”
shall mean the payment and performance of each and every obligation of Tenant
to the Landlord under the Amended Lease No. 2 and the other Transaction
Documents or relating thereto, whether now existing or hereafter arising, and
including, without limitation, the payment of the full amount of the Rent
payable under the Amended Lease No. 2.


 


3.             Representations and Covenants. 
Each Subtenant Guarantor jointly and severally represents, warrants,
covenants, and agrees that:


 


3.1
  Incorporation of Representations and
Warranties.  The representations and
warranties of Tenant and its Affiliated Persons set forth in the Transaction
Documents are true and correct on and as of the date hereof in all material
respects.


 


3.2   Performance of Covenants and Agreements.  Each Subtenant Guarantor hereby agrees to
take all lawful action in its power to cause Tenant duly and punctually to
perform all of the covenants and agreements set forth in the Transaction
Documents.


 


3.3   Validity of Agreement.  Each Subtenant Guarantor has duly and validly
executed and delivered this Agreement; this Agreement constitutes the legal,
valid and binding obligation of such Subtenant Guarantor, enforceable against
such Subtenant Guarantor in accordance with its terms, except as the
enforceability thereof may be subject to bankruptcy, fraudulent conveyance,
insolvency, reorganization, moratorium and other 


 


2

















 


laws relating to or
affecting creditors’ rights generally and subject to general equitable
principles, regardless of whether enforceability is considered in a proceeding
at law or in equity; and the execution, delivery and performance of this
Agreement have been duly authorized by all requisite action of such Subtenant
Guarantor and such execution, delivery and performance by such Subtenant
Guarantor will not result in any breach of the terms, conditions or provisions
of, or conflict with or constitute a default under, or result in the creation
of any lien, charge or encumbrance upon any of the property or assets of such
Subtenant Guarantor pursuant to the terms of, any indenture, mortgage, deed of
trust, note, other evidence of indebtedness, agreement or other instrument to
which it may be a party or by which it or any of its property or assets may be
bound, or violate any provision of law, or any applicable order, writ,
injunction, judgment or decree of any court or any order or other public
regulation of any governmental commission, bureau or administrative agency.


 


3.4   Payment of Expenses.  Each Subtenant Guarantor agrees, as principal
obligor and not as guarantor only, to pay to the Landlord forthwith, upon
demand, in immediately available federal funds, all costs and expenses
(including reasonable attorneys’ fees and disbursements) incurred or expended
by the Landlord in connection with the enforcement of this Agreement, together
with interest on amounts recoverable under this Agreement from the time such
amounts become due until payment at the Overdue Rate.  The Subtenant Guarantors’ covenants and
agreements set forth in this Section 3.4 shall survive the
termination of this Agreement.


 


3.5
  Notices.  Each Subtenant Guarantor shall promptly give
notice to the Landlord of any event known to it which might reasonably result
in a material adverse change in its financial condition.


 


3.6   Reports.  Each Subtenant Guarantor shall promptly
provide to the Landlord each of the financial reports, certificates and other
documents required of it under the Transaction Documents.


 


3.7   Books and Records.  Each Subtenant Guarantor shall at all times
keep proper books of record and account in which full, true and correct entries
shall be made of its transactions in accordance with generally accepted
accounting principles and shall set aside on its books from its earnings for
each fiscal year all such proper reserves, including reserves for depreciation,
depletion, obsolescence and 


 


3

















 


amortization of its
properties during such fiscal year, as shall be required in accordance with
generally accepted accounting principles, consistently applied, in connection
with its business.  Each Subtenant
Guarantor shall permit access by the Landlord and their agents to the books and
records maintained by such Subtenant Guarantor during normal business hours and
upon reasonable notice.


 


3.8   Taxes, Etc.  Each Subtenant Guarantor shall pay and
discharge promptly as they become due and payable all taxes, assessments and
other governmental charges or levies imposed upon such Subtenant Guarantor or
the income of such Subtenant Guarantor or upon any of the property, real,
personal or mixed, of such Subtenant Guarantor, or upon any part thereof, as
well as all claims of any kind (including claims for labor, materials and
supplies) which, if unpaid, might by law become a lien or charge upon any
property and result in a material adverse change in the financial condition of
such Subtenant Guarantor; provided, however, that such Subtenant
Guarantor shall not be required to pay any such tax, assessment, charge, levy
or claim if the amount, applicability or validity thereof shall currently be
contested in good faith by appropriate proceedings or other appropriate actions
promptly initiated and diligently conducted and if such Subtenant Guarantor
shall have set aside on its books such reserves of such Subtenant Guarantor, if
any, with respect thereto as are required by generally accepted accounting
principles.


 


3.9
  Legal Existence of Subtenant Guarantors.
Each Subtenant Guarantor shall do or cause to be done all things necessary to
preserve and keep in full force and effect its legal existence.


 


3.10   Compliance.  Each Subtenant Guarantor shall use reasonable
business efforts to comply in all material respects with all applicable
statutes, rules, regulations and orders of, and all applicable restrictions
imposed by, all governmental authorities in respect of the conduct of its
business and the ownership of its property (including, without limitation,
applicable statutes, rules, regulations, orders and restrictions relating to
environmental, safety and other similar standards or controls).


 


3.11   Insurance.  Each Subtenant Guarantor shall maintain, with
financially sound and reputable insurers, insurance with respect to its
properties and business against loss or damage of the kinds customarily insured
against by owners of established reputation engaged in the same or similar 


 


4

















 


businesses and similarly
situated, in such amounts and by such methods as shall be customary for such
owners and deemed adequate by such Subtenant Guarantor.


 


3.12   No Change in Control.  No Subtenant Guarantor shall permit the
occurrence of any direct or indirect Change in Control of Tenant or of such
Subtenant Guarantor.


 


4.             Guarantee.  Each
Subtenant Guarantor hereby unconditionally guarantees that the Guaranteed
Obligations which are monetary obligations shall be paid in full when due and
payable, whether upon demand, at the stated or accelerated maturity thereof
pursuant to any Transaction Document, or otherwise, and that the Guaranteed
Obligations which are performance obligations shall be fully performed at the
times and in the manner such performance is required by the Transaction Documents.  With respect to the Guaranteed Obligations
which are monetary obligations, this guarantee is a guarantee of payment and
not of collectibility and is absolute and in no way conditional or contingent.  In case any part of the Guaranteed
Obligations shall not have been paid when due and payable or performed at the
time performance is required, the Subtenant Guarantors shall, in the case of
monetary obligations, within five (5) Business Days after receipt of
notice from the Landlord, pay or cause to be paid to the Landlord the amount
thereof as is then due and payable and unpaid (including interest and other
charges, if any, due thereon through the date of payment in accordance with the
applicable provisions of the Transaction Documents) or, in the case of
nonmonetary obligations, perform or cause to be performed such obligations in
accordance with the Transaction Documents.


 


5.             Set-Off.  Each
Subtenant Guarantor hereby authorizes the Landlord, at any time and without
notice to set off the whole or any portion or portions of any or all sums
credited by or due from the Landlord to it against amounts payable under this
Agreement.  The Landlord shall promptly
notify such Subtenant Guarantor of any such set-off made by the Landlord and
the application made by the Landlord of the proceeds thereof.


 


6.             Unenforceability of Guaranteed
Obligations, Etc.  If Tenant is for any reason under no legal
obligation to discharge any of the Guaranteed Obligations (other than because
the same have been previously discharged in accordance with the terms of the
Transaction Documents), or if any other moneys included in the Guaranteed
Obligations have become unrecoverable from Tenant by operation of law or for
any other reason, including, without limitation, the invalidity or irregularity
in whole or in part 


 


5

















 


of any Guaranteed Obligation or of any Transaction
Document or any limitation on the liability of Tenant thereunder not
contemplated by the Transaction Documents or any limitation on the method or
terms of payment thereunder which may now or hereafter be caused or imposed in
any manner whatsoever, the guarantees contained in this Agreement shall
nevertheless remain in full force and effect and shall be binding upon each Subtenant
Guarantor to the same extent as if such Subtenant Guarantor at all times had
been the principal debtor on all such Guaranteed Obligations.


 


7.             Additional Guarantees. 
This Agreement shall be in addition to any other guarantee or other
security for the Guaranteed Obligations and it shall not be prejudiced or
rendered unenforceable by the invalidity of any such other guarantee or
security or by any waiver, amendment, release or modification thereof.


 


8.             Consents and Waivers, Etc. 
Each Subtenant Guarantor hereby acknowledges receipt of correct and
complete copies of each of the Transaction Documents, and consents to all of
the terms and provisions thereof, as the same may be from time to time
hereafter amended or changed in accordance with the terms and conditions
thereof, and, except as otherwise provided herein, to the maximum extent
permitted by applicable law, waives (a) presentment, demand for payment,
and protest of nonpayment, of any principal of or interest on any of the
Guaranteed Obligations, (b) notice of acceptance of this Agreement and of
diligence, presentment, demand and protest, (c) notice of any default
hereunder and any default, breach or nonperformance or Event of Default under
any of the Guaranteed Obligations or the Transaction Documents, (d) notice
of the terms, time and place of any private or public sale of any collateral
held as security for the Guaranteed Obligations, (e) demand for
performance or observance of, and any enforcement of any provision of, or any
pursuit or exhaustion of rights or remedies against Tenant or any other
guarantor of the Guaranteed Obligations, under or pursuant to the Transaction
Documents, or any agreement directly or indirectly relating thereto and any
requirements of diligence or promptness on the part of the holders of the
Guaranteed Obligations in connection therewith, and (f) to the extent such
Subtenant Guarantor lawfully may do so, any and all demands and notices of
every kind and description with respect to the foregoing or which may be
required to be given by any statute or rule of law and any defense of any
kind which it may now or hereafter have with respect to this Agreement, or any
of the Transaction Documents 


 


6

















 


or the Guaranteed Obligations (other than that the
same have been discharged in accordance with the Transaction Documents).


 


9.             No Impairment, Etc. 
The obligations, covenants, agreements and duties of each of the
Subtenant Guarantors under this Agreement shall not be affected or impaired by
any assignment or transfer in whole or in part of any of the Guaranteed
Obligations without notice to each such Subtenant Guarantor, or any waiver by
the Landlord or any holder of any of the Guaranteed Obligations or by the
holders of all of the Guaranteed Obligations of the performance or observance
by Tenant or any other guarantor of any of the agreements, covenants, terms or
conditions contained in the Guaranteed Obligations or the Transaction Documents
or any indulgence in or the extension of the time for payment by Tenant or any
other guarantor of any amounts payable under or in connection with the
Guaranteed Obligations or the Transaction Documents or any other instrument or
agreement relating to the Guaranteed Obligations or of the time for performance
by Tenant or any other guarantor of any other obligations under or arising out
of any of the foregoing or the extension or renewal thereof (except that with
respect to any extension of time for payment or performance of any of the
Guaranteed Obligations granted by the Landlord or any other holder of such
Guaranteed Obligations to Tenant, such Subtenant Guarantor’s obligations to pay
or perform such Guaranteed Obligation shall be subject to the same extension of
time for performance), or the modification or amendment (whether material or
otherwise) of any duty, agreement or obligation of Tenant or any other
guarantor set forth in any of the foregoing, or the voluntary or involuntary
sale or other disposition of all or substantially all the assets of Tenant or
any other guarantor or insolvency, bankruptcy, or other similar proceedings
affecting Tenant or any other guarantor or any assets of Tenant or any such
other guarantor, or the release or discharge of Tenant or any such other
guarantor from the performance or observance of any agreement, covenant, term
or condition contained in any of the foregoing without the consent of the
holders of the Guaranteed Obligations by operation of law, or any other cause,
whether similar or dissimilar to the foregoing.


 


10.           Reimbursement, Subrogation, Etc. 
Each Subtenant Guarantor hereby covenants and agrees that it will not
enforce or otherwise exercise any rights of reimbursement, subrogation,
contribution or other similar rights against Tenant (or any other person against
whom the Landlord may proceed) with respect to the Guaranteed Obligations prior
to the payment in full of all amounts owing with respect to the Amended Lease No. 2,
and until all indebtedness of Tenant to the Landlord shall have been 


 


7

















 


paid in full, no Subtenant Guarantor shall have any
right of subrogation, and each Subtenant Guarantor waives any defense it may
have based upon any election of remedies by the Landlord which destroys its
subrogation rights or its rights to proceed against Tenant for reimbursement,
including, without limitation, any loss of rights such Subtenant Guarantor may
suffer by reason of any rights, powers or remedies of Tenant in connection with
any anti-deficiency laws or any other laws limiting, qualifying or discharging
the indebtedness to the Landlord.  Until
all obligations of Tenant pursuant to the Transaction Documents shall have been
paid and satisfied in full, each Subtenant Guarantor further waives any right
to enforce any remedy which the Landlord now has or may in the future have
against Tenant, any other guarantor or any other person and any benefit of, or
any right to participate in, any security whatsoever now or in the future held
by the Landlord.


 


11.           Defeasance. 
This Agreement shall terminate at such time as the Guaranteed
Obligations have been paid and performed in full and all other obligations of
the Subtenant Guarantors to the Landlord under this Agreement have been
satisfied in full; provided, however, if at any time, all or any
part of any payment applied on account of the Guaranteed Obligations is or must
be rescinded or returned for any reason whatsoever (including, without
limitation, the insolvency, bankruptcy or reorganization of Tenant), this
Agreement, to the extent such payment is or must be rescinded or returned,
shall be deemed to have continued in existence notwithstanding any such
termination.


 


12.           Notices. 
(a)  Any and all notices, demands, consents, approvals,
offers, elections and other communications required or permitted under this
Agreement shall be deemed adequately given if in writing and the same shall be
delivered either in hand, by telecopier with written acknowledgment of receipt,
or by mail or Federal Express or similar expedited commercial carrier,
addressed to the recipient of the notice, postpaid and registered or certified
with return receipt requested (if by mail), or with all freight charges prepaid
(if by Federal Express or similar carrier).


 


(b)           All notices required or permitted to be
sent hereunder shall be deemed to have been given for all purposes of this
Agreement upon the date of acknowledged receipt, in the case of a notice by
telecopier, and, in all other cases, upon the date of receipt or refusal,
except that whenever under this Agreement a notice is either received on a day
which is not a Business Day or is required to be delivered on or before a
specific day which 


 


8

















 


is not a Business Day, the day of receipt or required
delivery shall automatically be extended to the next Business Day.


 


(c)           All such notices shall be addressed,


 


if to
the Landlord to:


 


c/o
Senior Housing Properties Trust


400
Centre Street


Newton,
Massachusetts  02458


Attn:  Mr. David J. Hegarty


[Telecopier No. (617)
796-8349]


 


if to
any Subtenant Guarantor to:


 


c/o
Five Star Quality Care, Inc.


400
Centre Street


Newton,
Massachusetts  02458


Attn:  Mr. Bruce J. Mackey Jr.


[Telecopier No. (617)
796-8385]


 


(d)           By notice given as herein provided, the
parties hereto and their respective successors and assigns shall have the right
from time to time and at any time during the term of this Agreement to change
their respective addresses effective upon receipt by the other parties of such
notice and each shall have the right to specify as its address any other
address within the United States of America.


 


13.           Successors and Assigns. 
Whenever in this Agreement any of the parties hereto is referred to,
such reference shall be deemed to include the successors and assigns of such
party, including without limitation the holders, from time to time, of the
Guaranteed Obligations; and all representations, warranties, covenants and
agreements by or on behalf of the Subtenant Guarantors which are contained in
this Agreement shall inure to the benefit of the Landlord’s successors and
assigns, including without limitation said holders, whether so expressed or
not.


 


14.           Applicable Law. 
Except as to matters regarding the internal affairs of the Landlord and
issues of or limitations on any personal liability of the shareholders and
trustees of the Landlord for obligations of the Landlord, as to which the laws
of the state of organization of the Landlord shall govern, this Agreement, the
Transaction Documents and any other instruments executed and delivered to
evidence, complete or perfect the transactions contemplated hereby and thereby
shall be interpreted, construed, applied and enforced in accordance with the
laws of The Commonwealth of Massachusetts applicable to 


 


9

















 


contracts between residents of Massachusetts which are
to be performed entirely within Massachusetts, regardless of (i) where any
such instrument is executed or delivered; or (ii) where any payment or
other performance required by any such instrument is made or required to be
made; or (iii) where any breach of any provision of any such instrument
occurs, or any cause of action otherwise accrues; or (iv) where any action
or other proceeding is instituted or pending; or (v) the nationality,
citizenship, domicile, principal place of business, or jurisdiction of
organization or domestication of any party; or (vi) whether the laws of
the forum jurisdiction otherwise would apply the laws of a jurisdiction other
than The Commonwealth of Massachusetts; or (vii) any combination of the
foregoing.


 


15.           Arbitration.  The Landlord or the Subtenant Guarantors may elect to
submit to arbitration any dispute hereunder that has an amount in controversy
in excess of $250,000.  Any such
arbitration submitted shall be conducted in Boston, Massachusetts in accordance
with the Commercial Arbitration Rules of the American Arbitration
Association then pertaining and the decision of the arbitrators with respect to
such dispute shall be binding, final and conclusive on the parties.


 


In the
event that any such dispute is submitted to arbitration hereunder, the Landlord
and the Subtenant Guarantors shall each appoint and pay all fees of a fit and
impartial person as arbitrator with at least ten (10) years’ recent
professional experience in the general subject matter of the dispute.  Notice of such appointment shall be sent in
writing by each party to the other, and the arbitrators so appointed, in the
event of their failure to agree within thirty (30) days after the appointment
of the second arbitrator upon the matter so submitted, shall appoint a third
arbitrator.  If either the Landlord or
the Subtenant Guarantors shall fail to appoint an arbitrator as aforesaid for a
period of twenty (20) days after written notice from the other party to make
such appointment, then the arbitrator appointed by the party having made such
appointment shall appoint a second arbitrator and the two (2) so appointed
shall, in the event of their failure to agree upon any decision within thirty
(30) days thereafter, appoint a third arbitrator.  If such arbitrators fail to agree upon a
third arbitrator within forty five (45) days after the appointment of the
second arbitrator, then such third arbitrator shall be appointed by the American
Arbitration Association from its qualified panel of arbitrators, and shall be a
person having at least ten (10) years’ recent professional experience as
to the subject matter in question.  The
fees of the third arbitrator and the expenses incident to the proceedings shall
be borne 


 


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equally between the Landlord and the Subtenant
Guarantors, unless the arbitrators decide otherwise.  The fees of respective counsel engaged by the
parties, and the fees of expert witnesses and other witnesses called for the
parties, shall be paid by the respective party engaging such counsel or calling
or engaging such witnesses.


 


The
decision of the arbitrators shall be rendered within thirty (30) days after
appointment of the third arbitrator. 
Such decision shall be in writing and in duplicate, one counterpart
thereof to be delivered to the Landlord and one to the Subtenant
Guarantors.  A judgment of a court of
competent jurisdiction may be entered upon the award of the arbitrators in
accordance with the rules and statutes applicable thereto then obtaining.


 


16.           Modification of Agreement. 
No modification or waiver of any provision of this Agreement, nor any
consent to any departure by any of the Subtenant Guarantors therefrom, shall in
any event be effective unless the same shall be in writing and signed by the
Landlord, and such modification, waiver or consent shall be effective only in
the specific instances and for the purpose for which given.  No notice to or demand on any Subtenant
Guarantor in any case shall entitle such Subtenant Guarantor to any other or
further notice or demand in the same, similar or other circumstances.  This Agreement may not be amended except by
an instrument in writing executed by or on behalf of the party against whom
enforcement of such amendment is sought.


 


17.           Waiver of Rights by the Landlord. 
Neither any failure nor any delay on the Landlord’s part in exercising
any right, power or privilege under this Agreement shall operate as a waiver thereof,
nor shall a single or partial exercise thereof preclude any other or further
exercise or the exercise of any other right, power or privilege.


 


18.           Severability. 
In case any one or more of the provisions contained in this Agreement
should be invalid, illegal or unenforceable in any respect, the validity,
legality and enforceability of the remaining provisions contained herein shall
not in any way be affected or impaired thereby, but this Agreement shall be
reformed and construed and enforced to the maximum extent permitted by
applicable law.


 


19.           Entire Contract. 
This Agreement constitutes the entire agreement between the parties
hereto with respect to the subject matter hereof and shall supersede and take
the place of 


 


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any other instruments purporting to be an agreement of
the parties hereto relating to the subject matter hereof.


 


20.           Headings; Counterparts. 
Headings in this Agreement are for purposes of reference only and shall
not limit or otherwise affect the meaning hereof.  This Agreement may be executed in any number
of counterparts, each of which shall be an original, but all of which together
shall constitute one instrument, and in pleading or proving any provision of
this Agreement, it shall not be necessary to produce more than one of such
counterparts.


 


21.           Remedies Cumulative. 
No remedy herein conferred upon the Landlord is intended to be exclusive
of any other remedy, and each and every remedy shall be cumulative and shall be
in addition to every other remedy given hereunder or now or hereafter existing
at law or in equity or by statute or otherwise.


 


22.           NONLIABILITY OF TRUSTEES. 
THE DECLARATIONS OF TRUST ESTABLISHING CERTAIN ENTITIES COMPRISING THE
LANDLORD, COPIES OF WHICH, TOGETHER WITH ALL AMENDMENTS THERETO (COLLECTIVELY,
THE “DECLARATIONS”), ARE DULY FILED WITH THE DEPARTMENT OF ASSESSMENTS
AND TAXATION OF THE STATE OF MARYLAND, PROVIDE THAT THE NAMES OF SUCH ENTITIES
REFER TO THE TRUSTEES UNDER SUCH DECLARATIONS COLLECTIVELY AS TRUSTEES, BUT NOT
INDIVIDUALLY OR PERSONALLY, AND THAT NO TRUSTEE, OFFICER, SHAREHOLDER, EMPLOYEE
OR AGENT OF SUCH ENTITIES SHALL BE HELD TO ANY PERSONAL LIABILITY, JOINTLY OR
SEVERALLY, FOR ANY OBLIGATION OF, OR CLAIM AGAINST, SUCH ENTITIES.  ALL PERSONS DEALING WITH SUCH ENTITIES, IN
ANY WAY, SHALL LOOK ONLY TO THE ASSETS OF SUCH ENTITIES FOR THE PAYMENT OF ANY
SUM OR THE PERFORMANCE OF ANY OBLIGATION.


 


[Remainder of page intentionally
blank.]


 


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WITNESS the execution hereof under seal as of
the date above first written.


 


SUBTENANT
GUARANTORS:


 


FS
TENANT POOL I TRUST,


FS
TENANT POOL II TRUST,


FS
TENANT POOL III TRUST,


FS
TENANT POOL IV TRUST,


FS
LAFAYETTE TENANT TRUST,


FS
LEISURE PARK TENANT TRUST, and


FS
LEXINGTON TENANT TRUST


 


 


	
   

  	
  By:

  	
  /s/ Travis K.
  Smith

  
	
   

  	
   

  	
  Travis
  K. Smith

  
	
   

  	
   

  	
  Vice
  President of each of the

  
	
   

  	
   

  	
  foregoing
  entities